STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 03-2024PL

)

DONNA BOLTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on August 12, 2003, by video conferencing between Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Linton B. Eason

Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Donna Bolton. pro se

17239 Northwest 73rd Avenue Miami, Florida 33015

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Donna Bolton, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Law Enforcement,

Criminal Justice Standards and Training Commission, and dated August 9, 2002, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated August 9, 2002, the Department of Law Enforcement, Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission"), charged Donna Bolton with having violated certain of the statutory and rule provisions governing the conduct of Florida certified correctional officers. Ms. Bolton timely disputed the factual allegations in the Administrative Complaint by executing an Election of Rights form in which she requested a formal administrative hearing before the Division of Administrative Hearings.

Ms. Bolton's request for hearing was forwarded to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct an evidentiary hearing. The matter was designated DOAH Case No. 03-2024PL and was assigned to the undersigned.

By an Order Granting Continuance and Re-Scheduling Hearing, the final hearing of this case, which had originally been scheduled for August 7, 2003, was rescheduled to commence August 12, 2003. On August 8, 2003, an Amended Notice of Hearing by Video Teleconference was entered informing the parties that the hearing would be conducted by video

teleconferencing between Miami, Florida, and the offices of the Division of Administrative Hearings in Tallahassee, Florida.

The same day the parties were informed of the change in the manner in which the hearing would be conducted by telephone, and a facsimile copy of the Amended Notice was provided to Petitioner. Counsel for the Commission appeared from Tallahassee, and Respondent, the court reporter, and the undersigned appeared from Miami.

At the final hearing, the Commission presented the testimony of Robert Lengel and Regina Carolyn Siedentopf. The Commission also offered seven exhibits for identification. All were accepted in evidence. Respondent testified on her own behalf. She offered one exhibit, which was accepted in evidence.

By Notice of Filing of Transcript issued September 30, 2003, the parties were informed that the Transcript of the final hearing had been filed on September 25, 2003. The parties, pursuant to agreement, therefore, had until October 6, 2003, to file proposed recommended orders. On October 9, 2003, the Commission filed Petitioner's Proposed Recommended Order.

Ms. Bolton did not file a post-hearing pleading. The post- hearing submittal of the Commission has been fully considered.

FINDINGS OF FACT

1. The Commission is charged with the responsibility for, among other things, certifying individuals for employment or appointment as a correctional officer and investigating complaints against individuals holding certificates as correctional officers in the State of Florida pursuant to Section 943.3195, Florida Statutes (2001). 1/

2. At the times pertinent to this matter, Respondent, Donna Bolton, was certified by the Commission as a correctional officer.

3. In May 2002 Ms. Bolton was participating as a student in the State Officer Certification Examination (hereinafter referred to as the "SOCE") process at Miami-Dade Community College's School of Justice. Ms. Bolton was a student in a class designated as COLE 7, taught by Robert Lengel, Training Advisor. The class was part of the SOCE process.

4. On the morning of May 9, 2002, Mr. Lengel gave the students in his COLE 7 class a quiz. The quiz consisted of having students, including Ms. Bolton, identify what ten codes that are routinely used by officers, codes 41 through 50, stood for. For example, students were to identify code 41 as standing for "sick or injured person."

5. Another quiz had been given by Mr. Lengel in the COLE 7 class the prior week. That quiz required students to identify

   codes 31 through 40. Ms. Bolton had been absent on the date the quiz 2/ was given and, therefore, needed to make up the missed quiz. Therefore, Mr. Lengel asked Ms. Bolton if she would mind taking the quiz on codes 31 through 40 at the same time she took the quiz on codes 41 through 50. Ms. Bolton agreed and, therefore, on May 9, 2002, was given the quiz on both sets of codes. 3/ Although the quizzes taken by Ms. Bolton were part of the SOCE process, they were not the actual SOCE itself.

6. As the students who were only required to take the quiz on codes 41 through 50 were completing their quiz, Regina C. Siedentopf, who was in charge of testing and curriculum and an adjunct part-time professor at Miami-Dade Community College, School of Justice, entered the room. 4/ After entering the room Ms. Siedentopf began preparing materials for a critique she was going to administer.

7. Ms. Bolton was still taking the two quizzes when

   
   

   Ms. Siedentopf entered the room. Ms. Bolton had a small piece of paper between her legs, which Ms. Siedentopf noticed.

   Ms. Bolton was looking down at the piece of paper and Ms. Siedentopf saw Ms. Bolton do so.

8. Ms. Siedentopf reported what she had seen to Mr. Lengel, who then asked everyone except Ms. Bolton and

   Ms. Siedentopf to leave the room. After the room was cleared, Ms. Bolton was asked to stand up, which she did. The piece of

   paper seen by Ms. Siedentopf was laying on the seat of Ms. Bolton's chair and Ms. Siedentopf retrieved it.

   Ms. Bolton's two quiz sheets were retrieved by Mr. Lengel.

   
   

9. The piece of paper 5/ Ms. Bolton was looking at during the quiz was a small piece of lined paper with the explanation of what codes 31 through 50 stood for written on it. Ms. Bolton had been, therefore, looking at the answers to the quizzes she was engaged in taking. Although students are allowed to have the explanations for codes on a sheet of paper with them so that they can study the codes up until the moment of taking the quiz, students are not allowed to use these study sheets during the quiz.

10. One of Ms. Bolton's quizzes retrieved by Mr. Lengel contained the correct explanation for codes 31 through 40 written on it. 6/ The second quiz contained the correct explanation for codes 41 through 46 and a partial explanation of code 47 written on it. Codes 48 through 50 were blank. 7/

11. When Mr. Lengel asked Ms. Bolton to give a written explanation of what had happened, Ms. Bolton essentially gave in the nature of "excuses" for her conduct, without explaining what that conduct was. 8/ After reading her statement, Mr. Lengel asked her to describe her actions with regard to the piece of paper that had been found. Ms. Bolton wrote: "I had the paper between my legs and I would look at it if I needed to." 9/

12. At hearing, Ms. Bolton admitted that she had the piece of paper with the answers to the two quizzes written on it located on the chair during the quiz. Denying that she had looked at the paper, however, Ms. Bolton explained that she had placed the paper on her chair because the paper, which she originally had in her pants pocket, irritated her. This explanation is unconvincing, given the size of the paper, and is, therefore, rejected. Her explanation also fails to explain why she looked at the paper while taking the quiz.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

13. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1).

    1. The Burden and Standard of Proof.

       
       

14. In the Administrative Complaint, the Commission is seeking the imposition of, among other penalties, the revocation or suspension of Ms. Bolton's certification. Therefore, the Commission has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995).

15. Clear and Convincing evidence has been defined as evidence which:

    requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

16. The grounds proven in support of the Commission's assertion that Ms. Bolton's certificate should be revoked or suspended must be those specifically alleged in the Administrative Complaint. See, e.g., Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v.

    Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); and Hunter v. Department of Professional Regulation, 458 So. 2d 842 (Fla. 2nd DCA 1984).

    1. The Charges Against Ms. Bolton; Rule 11B-30.009.

       
       

17. The Commission seeks to discipline Ms. Bolton for violation of Rule 11B-30.009, which provides, in part, that an "applicant shall not engage in conduct that subverts or attempts to subvert the [SOCE] process." The rule goes on to define subverting or attempting to subvert the SOCE process to "include" three general activities. In this case, the

    Commission has alleged that Ms. Bolton violated the specific activities specified by Rule 11B-30.009(3), which provides:

    1. The applicant shall not violate the applicant identification process. Conduct that violates the applicant identification process is as follows:

       
       

       1. Falsifying or misrepresenting information required for admission to the SOCE.

       2. Impersonating an applicant.

       3. Having an impersonator take the SOCE on one's behalf.

       4. Disrupting the test administration.

          
          

18. The portion of Rule 11B-30.009 which the Commission has alleged Ms. Bolton violated in the Administrative Complaint clearly has no application to this matter. This specific provision deals with false identification during an SOCE itself. This provision has no application to Ms. Bolton's actions because Ms. Bolton's actions involve cheating, not false identification.

19. After citing Rule 11B-30.009(3), the Administrative Complaint alleges the following facts in support of the violation:

    by having in one's possession during the administration of the examination any books, notes, written or printed materials or data of any kind, not supplied as part of, or required for, the test administration to wit: had in her possession a "cheat sheet" with answers to exam questions on it.

    
    

    Based upon this language, it is clear that the Commission intended to allege that Ms. Bolton violated, not Rule 11B- 30.009(3), but Rule 11B-30.009(2)(c), which provides:

    1. The applicant shall not violate the standards of the SOCE test administration. Violations of test administration include:

       
       

       . . . .

       
       

       (c) Having in one's possession during the administration of the SOCE, any books, notes, written, or printed materials or data of any kind.

       
       

20. While the Commission did not cite the correct provision of the Rule in the Administrative Complaint, because they cited the correct general rule and quoted sufficient facts to put Ms. Bolton on notice of what she was being charged with, Ms. Bolton will not be prejudiced by a consideration of whether she violated Rule 11B-30.009(2)(c). Nor does a consideration of this portion of the Rule support a finding that Ms. Bolton violated it.

21. The portion of the Rule which the Commission apparently meant to cite, Rule 11B-30.009(2)(c), like all of the specific subsections of this Rule, describes wrongdoing, not during the taking of courses as Ms. Bolton was doing, but during the taking of the actual SOCE itself. Ms. Bolton was taking a mere quiz in one course and not the SOCE. She did not, therefore, violate Rule 11B-30.009(2)(c).

22. Based upon the foregoing, it is concluded that the Commission failed to prove clearly and convincingly that Ms. Bolton violated Rule 11B-30.009(2) or (3).

    1. The Charges Against Ms. Bolton; Sections 943.1395.

    
    

23. The Commission also seeks to discipline Ms. Bolton pursuant to Sections 943.1395(6) and (7), which provide the following:

    1. The commission shall revoke the certification of any officer who is not in compliance with the provisions of s. 943.13(4) or who intentionally executes a false affidavit established in s. 943.13(8), s. 943.133(2), or s. 943.139(2).

       
       

       . . . .

       
       

    2. Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:

    
    

    1. Revocation of certification.

    2. Suspension of certification for a period not to exceed 2 years.

    3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

    5. Issuance of a reprimand.

    
    

    E. Section 943.1395(6).

    
    

24. The Commission has failed to prove clearly and convincingly that Ms. Bolton violated Section 943.1395(6).

    While Ms. Bolton cheated during a class necessary for her continued certification as a correctional officer, it has not been shown that she "intentionally execute[d] a false affidavit" or that she was not in compliance with the provisions of Section 943.13(4), which requires that a correctional officer:

    Not have been convicted of any felony or of a misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the United States. . . .

    
    

25. All of the provisions cited in Section 943.1395(6) deal with giving false statements, which the evidence failed to prove Ms. Bolton is guilty of.

    F. Section 943.1395(7).

    
    

26. Section 943.13(7), which the Commission cited in the Administrative Complaint, requires that correctional officers shall: "[h]ave a good moral character as determined by a background investigation under procedures established by the Commission."

27. Section 943.1395(7) contemplates that a correction officer will maintain good moral character and that disciplinary action may be taken against a correctional officer "[u]pon a finding by the commission that a certified officer has not maintained good moral character. "

28. The term "moral character" has been defined for purposes of Section 943.1395(7) in Rule 11B-27.001. In its

    Administrative Complaint, the Commission has alleged that Ms. Bolton has failed to maintain good moral character as

    defined in Rule 11b-27.001(4)(c), which provides, in pertinent part, as follows:

    (4) For the purposes of the Criminal Justice Standards and Training Commission's implementation of any of the penalties specified in Section 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:

    
    

    . . . .

    
    

    (c) The perpetration by an officer of acts or conduct that constitute the following offenses:

    
    

    . . . .

    
    

    7. Conduct that subverts or attempts to subvert the State Officer Certification Examination process pursuant to subsections 11B-30.009(1)-(3), F.A.C.

    
    

    . . . .

    
    

29. Although the evidence failed to clearly and convincingly prove that Ms. Bolton violated Rule 11B-30.009(1), (2), or (3), it does not follow that Ms. Bolton's conduct of using a cheat-sheet during a quiz given as part of the SOCE process did not constitute a violation of the Rule. In defining what constitutes engaging in conduct "that subverts or attempts to subvert the [SOCE] process," the rules provide that the specified conduct merely "includes" the three generally

    described activities. It does not state that the three general activities are the only ones that constitute a violation of the Rule. The use of the term "includes" to provide examples of what constitutes conduct "that subverts or attempts to subvert the [SOCE] process" does not indicate that the three general activities of Rule 11B-30.009(1), (2), and (3) constitute an exhaustive list. See Smith v. Sunland Training Center, 455

    So. 2d 1089 (Fla. 1st DCA 1984).

    
    

30. Ms. Bolton cheated while taking a quiz in a class that was a part of the SOCE process. By doing so, she attempted to subvert that process in violation of Rule 11B-30.009.

31. The Commission, having proved that Ms. Bolton attempted to subvert the SOCE process in violation of Rule 11B- 30.009, has proved clearly and convincingly that Ms. Bolton has violated Section 943.1395(7) as alleged in the Administrative Complaint.

    G. Appropriate Disciplinary Action.

    
    

32. The Commission is authorized, upon finding a violation of Section 943.1395(7), to impose the discipline specified in Section 943.1295(7)(a) through (e), ranging from revocation to a reprimand.

33. Rule 11B-27.005(5) sets forth the disciplinary guidelines for the discipline of correctional officers. In

    pertinent part, 11B-27.005(5)(c) sets forth the following guidelines:

    (c) For the perpetration by the officer of an act or conduct, as described in paragraph 11B- 27.0011(4)(c), F.A.C., if such act or conduct does not constitute a crime . . . . the action of the Commission shall be to impose the following penalties, absent aggravating or mitigating circumstances:

    
    

    Violation: Recommended Penalty Range:

    
    

    . . . .

    
    

    7. Subverting the State Officer Certification

    Examination Process Revocation

    
    

34. Rule 11B-27.005(6) sets forth the applicable aggravating and mitigating circumstances. It does not appear that any of the aggravating circumstances apply. Mitigating circumstances include the lack of severity of the misconduct (the cheating was on a quiz that ultimately would have little effect on whether Ms. Bolton completed the course), Ms. Bolton has certified for a considerable period of time, and the lack of prior disciplinary actions against Ms. Bolton.

35. The Commission has argued that Ms. Bolton's certificate should be revoked. Given that the actual provision she violated, Section 943.1395(7) provides for a range of penalties, rather than the more severe penalty suggested by Rule 11B-27.005, and that the test that Ms. Bolton cheated on was only a simply quiz in one course, it is suggested that her

correctional officer's certificate be suspended for a period of one year. See Fla. Stat. §943.1395(7)(b).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission finding that Ms. Bolton violated Section 943.1395(7); dismissing the allegation that she violated Rule 11B-30.009(3); dismissing the allegation that she violated Section 943.1395(6); and suspending her certification for a period of one year.

DONE AND ENTERED this 30th day of October, 2003, in Tallahassee, Leon County, Florida.

S

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2003.

ENDNOTES

1/ All further references to Sections of Chapter 943, Florida Statutes, are to Sections of Chapter 943, Florida Statutes

(2001), and all references to Sections of Chapter 120, Florida Statutes, are to Sections of Chapter 120, Florida Statutes (2003), unless otherwise indicated. All references to Rules are to the Florida Administrative Code, unless otherwise indicated.

2/ Ms. Bolton had missed class in order to attend a Commission meeting held in Tampa, Florida. She was required to attend the meeting in order to get an extension of time to complete requirements necessary to maintain her certification.

3/ Ms. Bolton, at hearing, complained about the manner in which she was required to take the two quizzes. She indicated that the other students in the class were disruptive because they were turning in the results of their one quiz while she was trying to complete two quizzes. She also indicated that she believed she should have been taken to a quiet location to complete the second exam. Ms. Bolton did not, however, express her concerns to Mr. Lengel at the time she was taking the quizzes. More importantly, the disruptions she complained of in no way explain or justify cheating.

4/ Ms. Bolton suggested that Ms. Siedentopf should have not been in the room, but, whether Ms. Siedentopf should or should not have been present is not relevant to whether Ms. Bolton committed the acts alleged in this matter.

COPIES FURNISHED:

Linton B. Eason Assistant General Counsel

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Donna Bolton

17239 Northwest 73rd Avenue Miami, Florida 33015

Donna Belton

c/o Dorothy Veight

11201 Southwest 55th Street Box 126

Miramar, Florida 33025

Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

Rod Caswell, Program Director Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 03-002024PL

Orders for Case No: 03-002024PL